Jurisprudence

Barr’s Tangle With Geoffrey Berman Is a Scary New Step for the Justice Department

William Barr, sitting at a desk with a glass of water and some papers, raises his hand while speaking.
Attorney General William Barr speaks during a roundtable meeting in the Cabinet Room of the White House on June 15. Saul Loeb/AFP via Getty Images

The Southern District of New York is historically known for its independence from the government. That independence has not been appreciated by the Trump administration or Attorney General William Barr, as became clear this past weekend when Geoffrey Berman, the lead prosecutor at the SDNY, was dismissed, in a confusing two-day episode. What makes the incident so troubling is two different factors: one, that Berman succeeded Preet Bharara, whose dismissal from SDNY was also extremely suspicious; two, that Berman was first personally interviewed by President Donald Trump for his position, a big no-no when it comes to political interference. It all goes to show how, in the years since Bharara left office, the rules and norms about how the Department of Justice operates have been twisted, and the sudden firing of a U.S. attorney seems to fit into a larger pattern.

On Tuesday’s episode of What Next, I spoke with Jeremy Stahl, a senior editor at Slate who covers the Department of Justice, about what Berman’s leaving signifies about Barr’s grip over the DOJ, and what this could mean for cases Barr is charged with prosecuting—including those against his own boss, the president. Our conversation has been edited and condensed for clarity.

Mary Harris: Let’s explain exactly what happened this weekend, because I think if you’re a casual observer, it seemed really confusing.It started on Friday when Bill Barr announced that Geoffrey Berman was resigning.

Jeremy Stahl: Barr said on Friday evening, in this highly unusual announcement, that Berman would be stepping down and that he would be replaced in this highly unusual way outside of the normal appointment procedure. Very quickly, Berman put out this statement saying he wasn’t resigning.

This is really uncommon, right?

I’m trying to think of a parallel situation where a U.S. attorney explicitly rebuked the sitting attorney general as he was maneuvering to remove the U.S. attorney from office. The closest I can think of is the Saturday Night Massacre that President Richard Nixon initiated when he tried to have the special prosecutor who was investigating Watergate fired and just got rid of attorney general replacement after attorney general replacement until he got a person who would do his bidding. Outside of that, it’s hard to think of something similar, even though these two things are obviously quite distinct.

On Saturday, Barr stated that the president said Berman was fired. And then Trump said, I’m not involved. Which all seems strange on their end.

The president does have the ability to fire a U.S. attorney if he wants to. And by Sunday, apparently, everyone had straightened out their stories. The president told Fox News that it was a procedural thing that Barr had asked him to do, in terms of stepping in to fire Berman. More importantly, Barr then said he’d follow the normal successor procedure. Audrey Strauss, Berman’s deputy, will take over that office until a permanent successor is approved and confirmed by the Senate. What that did was allow Berman to feel OK stepping down from this position in the midst of the chaos: As long as this person is in charge of this office, I feel comfortable leaving it to her.

It seemed all along that what was important to Berman was ensuring this chain of command, that someone he trusted took over the office. Do we have any idea why that was the hill he wanted to die on?

All we know are these tea leaves and little clues that he left in his Friday note saying he would not be leaving. The major one is that he said that he was going to stay on to ensure that ongoing investigations would be protected and essentially free of political interference. So the implication, I guess, was that he did not trust others, outsiders, to take on cases that he and the office were currently working on and that Strauss, whom he does trust, now will be in charge of.

Berman had this protection: Only the president could fire him. Does Strauss have that protection?

She does not. She could be fired by Barr, which would allow him to once again do the president’s dirty work if there comes a situation where her being in that office is an inconvenience to anyone.

Part of the reason this Geoffrey Berman vs. William Barr episode raised so many flags is that the SDNY has been a driving force behind many independent investigations of the Trump administration: into Rudy Giuliani, into Trump donors who were ensnared in the president’s impeachment, and into Michael Cohen. But a lawyer doesn’t have to actively thwart the president to get his attention. Simply allowing an investigation into Trump to move forward unimpeded has ended careers, too. That may be what happened here.

I think that speaks to how Trump has famously described often what he wants from a DOJ: He wants a protection racket, a Roy Cohn, a personal attorney to do what he wants, operate to protect his friends, and possibly even go after his adversaries.

Who leads these offices is really important. This isn’t the first time Barr has put, or tried to put, someone who’s close to him in charge of an office. This happened in Washington, and it did end up having a real impact on cases involving the Trump administration. Can you tell that story?

It was a similar dynamic in the U.S. Attorney’s Office in the District of Columbia, when Jessie Liu, who’s considered to be a very conservative Republican, was in charge. The line prosecutors in that office came with the cases that Robert Mueller presented, which directly affected Trump’s friends and political allies. Liu was involved in those cases, and she didn’t interfere. She didn’t put those cases to a stop. She didn’t protect the president in any real way. Those cases did go forward.

You’re talking about cases against Roger Stone and Michael Flynn, specifically.

Yes. In February of this year, she was weirdly replaced under an unusual appointment scenario where she was told she was getting a position that she ultimately didn’t get. Then Barr picked Timothy Shea, this very close confidant, to directly replace her. Immediately you saw what he did with that office in terms of those cases, working on behalf of the criminal defendants, one of whom had pleaded guilty and one of whom had been convicted, and working to protect these people who were, again, political confidants and allies of the president.

And in both of those cases, the DOJ attorneys working on them resigned.

Yep. In one of the cases there was an outright resignation for that from a DOJ official, and I believe that official is soon testifying before Congress. Otherwise, the prosecutors on those cases just stepped down from the cases.

So you can see how these decisions are putting these attorneys in between a rock and a hard place, making them choose whose side they’re on.

To their credit, the people who are working in the institution day to day, it seems, have done what’s right, for the most part, in terms of doing their jobs and, when their jobs were thwarted, doing the crucial step of showing to some extent what was happening by stepping down. They created a scenario where people were more aware of what Barr was doing and how he was interfering in the levers of justice to protect the president. But also it resulted in multiple letters from thousands of former DOJ officials who outright said Barr is abusing his power and must go.

What are the mechanisms by which other branches of government could intervene at this point? You’ve been quite critical of the Democrats in the past for not holding Barr to account.

Well, it’s hard because, to give them credit, they did try to impeach the president, and that didn’t turn out as they wanted. So it’s difficult when the Republican majority that controls the Senate has shown no interest in holding this administration legally accountable.

And when was the last time Barr was even in Congress giving testimony, doing the basics?

We’re going to have this very strange circumstance this week, where the House Judiciary Committee that has jurisdiction over all of this is going to be interviewing members of the DOJ about improper political influence and interference, and the attorney general is refusing to show up to defend himself or speak or even explain himself.

The guy the Trump administration originally wanted to replace Berman with hasn’t gone away: Jay Clayton from the SEC. The Senate does have the power to approve a nomination like that. What do we know about how that process might go?

In those cases, if your home-state senator—the senator from the state of the office that is open for the appointment—objects to that appointment, historically, the chairman of the Judiciary Committee has given home-state senators privileges to reject the nomination outright. The current committee chairman, Sen. Lindsey Graham, for now has said he will honor that. And that means Sens. Chuck Schumer and Kirsten Gillibrand have vetoes over this and have the opportunity to say no to this appointment. They’ve already said that they would be exercising that. It remains to be seen whether Graham is going to stick by what he said.

I wonder if you see that as a success or whether you see it as weak sauce.

It really depends on what happens next with the current U.S. attorney, Audrey Strauss, and if she’s allowed to do her job.

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